What Will Happen to U.S. Citizenship in a New Nation of Puerto Rico? The Word from Washington

Posted March 31, 2017

The fate of U.S. citizenship in a new nation of Puerto Rico has been the subject of debate for many years. In Puerto Rico, intense arguments have been waged over the likely fate of U.S. citizenship if Puerto Rico were to become a sovereign nation. In Washington D.C., however, there is uniform agreement – Puerto Ricans would eventually lose their U.S. citizenship. The only question is when.

Presidents and members of Congress have said Puerto Ricans could lose their U.S. citizenship immediately if Puerto Rico were to become a new nation – either under independence or free association. Under President George W. Bush, the President’s Task Force on Puerto Rico’s Status in 2007 and 2005 was clear that “it would need to be made clear to the people of Puerto Rico that freely associated status is a form of independence,” and “independence for the United States could affect the citizenship of Puerto Rico’s residents.” In particular, “[t]he general rule is that citizenship follows sovereignty.”

Others, like the Obama White House in 2011, have been more charitable, indicating that people living within Puerto Rico on the day sovereignty is achieved should be able to keep their citizenship as a matter of principle. The failure of the 2011_President’s Task Force on Puerto Rico’s Status to address what is legally and politically possible – as opposed to simply stating ideals and values – provides no reassurance to Puerto Ricans who value their U.S. citizenship, especially now that President Obama is out of office.

There is also uniform recognition that one Congress cannot bind a future Congress, and because U.S. citizenship for Puerto Ricans is provided by federal law, each Congress can decide when and how U.S. citizenship for Puerto Rican can end. As the President’s Task Force on Puerto Rico’s Status made clear in in 2007 and 2005, the terms of Free Association “cannot be made immune from the possibility of unilateral termination by the United States.” Even a grant of citizenship is no guarantee, as it could end in the next Congress.

Over the years, statements by Federal decision makers about U.S. citizenship under a newly sovereign Puerto Rico have come in the context of possible independence, Free Association, or an “enhancement” of the current territorial status. Regardless of the type of sovereignty at issue, however, the thinking of Federal officials has been unwavering: foreign sovereignty is ultimately not consistent with U.S. citizenship.

Free Association: Free Association would provide for an independent Puerto Rico with a close relationship to the United States, similar in status to the Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of Palau. . . . Their citizens may work and attend schools in the United States, but they are not U.S. citizens. (page 25)

Independence: The President and Congress should commit to preserving U.S. citizenship for Puerto Rican residents who are U.S. citizens at the time of any transition to Independence, if the people of Puerto Rico choose a status option that results in Puerto Rico’s Independence.

….

Prior administrations have examined the legal question of whether, under the U.S. Constitution, current U.S. citizen residents of Puerto Rico could be stripped of their citizenship. To the Task Force, this is simply the wrong question; whatever the answer to the legal question, current U.S. citizens should not be stripped of their citizenship even if the people of Puerto Rico vote for Independence. Accordingly, the Task Force recommends that the President and Congress commit to preserving U.S. citizenship for Puerto Rican residents at the time of any transition to Independence. (Page 30)

[As explained later in Congressional Research Service Report (Political Status of Puerto Rico: Options for Congress; R. Sam Garrett, June 7, 2011, #7-5700): “If Puerto Ricans chose independence, the task force recommended that U.S. citizenship should be preserved for those who are already U.S. citizens.” (Emphasis added)

The general rule is that citizenship follows sovereignty. So if Puerto Rico were to become an independent nation, Puerto Rico’s residents could become citizens of the newly independent nation and cease to be citizens of the United States, unless a different rule were prescribed by legislation or treaty. (Page 7)

…

Another possible model of independence is that of the freely associated states of Micronesia, the Marshall Islands, and Palau….[I]t would need to be made clear to the people of Puerto Rico that freely associated status is a form of independence from the United States and cannot be made immune from the possibility of unilateral termination by the United States. (page 8)

Any planning for Puerto Rican independence would need to consider citizenship. Individuals born in Puerto Rico are citizens of the United States by statute (rather than by being born or naturalized in the United States). The general rule is that citizenship follows sovereignty. So if Puerto Rico were to become an independent sovereign nation, those who chose to become citizens of it or had U.S. citizenship only by statute would cease to be citizens of the United States, unless a different rule were prescribed by legislation or treaty, much as citizens of the Philippines lost their status as U.S. nationals once the Philippines became independent. (Page 9)

[I]t would need to be made clear to the people of Puerto Rico that freely associated status is a form of independence from the United States and cannot (absent an amendment of the U.S. Constitution) be made immune from the possibility of unilateral termination by the United States. (Page 9)

[T]here is at least an argument that individuals possessing United States citizenship would have a constitutional right to retain citizenship even if they continue to reside in Puerto Rico after independence. … On the other hand, there is also case law dating from early republic supporting the proposition that nationality follows sovereignty. (Page 4)

If Puerto Rico is to become an independent nation, then, while Congress may well have the power to provide…that persons born in Puerto Rico in the future shall acquire United States citizenship, we think Congress could also change that rule and provide that, in the future, birth in Puerto Rico shall no longer be a basis for United States citizenship. (Page 10)

There is an argument that the Constitution would ensure that those who possessed United States citizenship at the time of Puerto Rican independence must be able to retain that citizenship after independence…but there is also case law supporting the proposition that nationality follows the flag … As noted, it is unclear how a court would resolve this issue. (Page 11)

[S]o long as Puerto Rico remains part of the United States, citizenship that has been granted is constitutionally protected… [but] envisioning the creation of an independent nation, the constitutional analysis is more complicated. There is case law that indicates that a change in sovereignty severs the individual’s ties with the country that had previously exercised sovereignty over the place that person inhabits. (Pages 18-20)

We have concern about the proposal that would legislate dual nationality for residents of Puerto Rico, since it appears to be grounded in the recognition of the conferred citizenship on citizens of another nation, which is incompatible with the notion of sovereignty. There are also problems that are explained in my testimony about the diplomatic protection of U.S. citizens who would be in Puerto Rico and the responsibilities that a United States embassy would have under U.S. law to protect those rights. (Pages 20-22)

Real free association would be a treaty-based relationship that would end U.S. sovereignty, nationality, and citizenship in Puerto Rico in favor of separate sovereignty, nationality, and citizenship for Puerto Rico.

In contrast to political union and the U.S. constitutional system of federalism, real free association is the same ultimate status as independence. While a close association by treaty can be negotiated, free association is terminable at will by either party consistent with the right of both parties to national independence. Otherwise, the association would not be free. If it were meant to be unalterable without mutual consent, that would mean each party would be able to deny the right of independence to the other. That would be a continuation of a colonial and territorial status by another name.

Whether in the form of full independence or free association, separate sovereignty would end U.S. sovereignty, nationality and citizenship in Puerto Rico in favor of full sovereignty, nationality and citizenship for Puerto Rico as a new and separate member of the world community. Puerto Rico would then take its place alongside the other island nations of the Caribbean and every other nation in the world and as a sovereign republic.

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Congress should clarify the choices presented to the people of Puerto Rico to remove any confusion that there is a “have it both ways” option with permanent dual citizenship and shared sovereignty. In reality, in order for free association or any form of independence to succeed, there must be a succession of state process in which there is a transfer of sovereignty, nationality and citizenship from one nation to another. Puerto Rico must become a truly independent nation constitutionally and under international law in order to enter into free association with the U.S.

—[I]t is our position that as long as the U.S. flag flies in Puerto Rico, we ought to continue to grant citizenship. If Puerto Rico is to become a nation, then it would be in–I will not be the constitutional witness here, I will let Mr. Treanor do it for the Justice Department, but it would be–we have already taken the position and reiterated that we should not continue to grant citizenship and we can discontinue the grant of citizenship if Puerto Rico is to become a nation, if it is not to be a territory of the United States. (Page 27)

The United States under no circumstances should cede its power to determine citizenship by the issuance of U.S. passports[.] Apart from constitutional concerns, there are foreign policy concerns and sound practical reasons for opposing these provisions so that control over the issuance of U.S. passports and immigration remains in the hands of a Federal authority. Chief among these are law enforcement interests and the need to promote the uniform issuance of passports. (Page 154)

Those who say the citizenship issue should not be raised because it is a scare tactic are missing the point. For the question of federal power respecting statutory citizenship goes to the very essence of the problem with the current judicial and political definitions of federal power in the insular areas. For example, in his 1989 legal analysis of this issue, J. H. Killian, American Law Division, Congressional Research Services, concluded that “ … the limitation of the first sentence of Section I of the Fourteenth Amendment would not restrain Congress, discretion in legislating about the citizenship status of Puerto Rico.”

Congressional Research Service Reports

As residents of a sovereign independent nation, Puerto Ricans could develop closer ties to Caribbean nations, but would likely be forced to choose between citizenship in the United States or in Puerto Rico. (Page 27)

As a general matter, we might present the principal settlement to be a prospective resolution of the citizenship of those born in Puerto Rico following the attainment of independence and the retrospective resolution of the citizenship of those who are now United States citizens.

We assume that in terms of prospective settlement, Congress would simply provide that persons born in the newly-independent Puerto Rico would not receive United States citizenship. It would be possible to permit the continued receipt of United States citizenship, creating a dual-citizen status for every person born in Puerto Rico thereafter, but this resolution would be literally unprecedented and unlikely to be a choice Congress would make. So, if this is the congressional view, persons born after independence in Puerto Rico would be citizens of Puerto Rico but not citizens of the United States.

Congressional Committee Reports

Senate Committee on Energy and Natural Resources, Report 114-311 to accompany S. 2360, Chairman Lisa Murkowski (R-AK), August 30, 2016(noting practical problems with FAS citizens within the U.S. due to lack of citizenship).Under the Compacts of Free Association, FAS citizens, who are otherwise eligible, are admitted without visa to study, work and reside in the United States and its territories. Admission at ports of entry in the Pacific, especially Guam and Hawaii, seldom pose a problem for legal FAS migrants. Once in the continental United States, however, FAS migrants can encounter state, local and private authorities who are not aware of their Compact privileges to study, work and live in the United States. (Page 7)

House Committee on Resources: Report to accompany H.R. 856, Chairman Don Young (R-AK), June 12, 1997.*

[A] Congressional Research Service (CRS) legal analysis in 1990 confirmed that establishment of separate Puerto Rican sovereignty would appear to provide the legal basis for Congress to withdraw statutory citizenship without violating due process.

[I]n a separate sovereignty scenario, U.S. nationality and citizenship would no longer be conferred on persons born in Puerto Rico as of the date U.S. sovereignty ends, or perhaps even earlier during the transition period.

To ensure the successful succession of state to nationhood for Puerto Rico and avoid the impairment of U.S. and Puerto Rican sovereignty that would inevitably result from a grant of mass dual citizenship, the Committee expects Congress to include in any status legislation for Puerto Rico the provisions in H.R. 856 which end continued statutory U.S. citizenship based on birth in Puerto Rico during the territorial period upon acquisition of any other citizenship, including that of Puerto Rico. This approach would not prevent dual citizenship on an individual case-by-case basis if the U.S. citizenship of the person was acquired on a legal basis other than birth in Puerto Rico or a relationship to a person whose U.S. citizenship is based on birth in the territory. It will, however, prevent conversion of the current statutory U.S. citizenship into automatic dual citizenship as a result of a change of status to separate sovereignty. (Page 14)

More important, the U.S. citizenship conveyed by law to people born in Puerto Rico could be affected by the outcome of the referendum. I have no doubt that this Congress can pass a law to take my citizenship away from me and rescind the citizenship of all born in Puerto Rico. I am clear on the fact that my son’s citizenship is different from mine. His is protected by the Constitution of the United States and mine is statutory.

Temporary economic advantages can help prepare a society for statehood but can never indefinitely outweigh the civil advantage of full citizenship, which only statehood can confirm. I look to a Puerto Rico that appears at our portals asserting that the obligation of citizenship can never be fully met by a citizenship that is incomplete. (Page 103)

At this time, I wish only to make clear that Congress cannot promise the people of the United States and Puerto Rico that these policies and this structure will be permanent and irrevocable. The Bill’s guarantees of permanent union, a system that may not be unilaterally revoked, and its irrevocable grant of U.S. citizenship to all persons born in Puerto Rico are illusory and unenforceable.

…

Under the present commonwealth arrangement, established by statute in 1950, Congress has already adopted many of the elements contained in H.R. 4751. Congress has also enacted a statute providing that all persons born in Puerto Rico acquire U.S. citizenship at birth. However, these statutory policies are discretionary and continue at the pleasure of Congress. As a result, despite the misleadingly comforting language of H.R. 4751, Congress can unilaterally alter all such statutory policies at will. Thus, to obtain genuinely permanent political union defined and protected under the U.S. Constitution, and to ensure for all times that birth in Puerto Rico will confer U.S. citizenship, the commonwealth of Puerto Rico will have to follow the example of other commonwealths like Virginia and Massachusetts and seek admission to statehood.

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What Will Happen to U.S. Citizenship in a New Nation of Puerto Rico? The Word from Washington
The fate of U.S. citizenship in a new nation of Puerto Rico has been the subject of debate […]

[…] There also has been – and continues to be – confusion over what Free Association would mean for Puerto Rico. There is a perception in Puerto Rico that people would be able to keep their U.S. citizenship if Puerto Rico were to become an freely associated nation with the U.S. – and many people believe that this citizenship can be passed down through generations. But providing U.S. citizenship to millions of residents of a foreign nation would be an unprecedented situation. There are no guarantees that Puerto Ricans could keep or inherit U.S. citizenship in a new sovereign nation. The situation is ambiguous at best, and Members of Congress as well as other senior federal officials have said so over the years. […]

[…] Rican residents at the time of any transition to Independence. (Page 30) [As explained later in Congressional Research Service Report (Political Status of Puerto Rico: Options for Congress; R. Sam Garrett, June 7, 2011, #7-5700): […]